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2008 DIGILAW 472 (PAT)

Diplal Mahto v. State of Bihar

2008-03-07

body2008
S.K. SHARMA, J.:–The sole appellant has preferred this appeal against the judgment of conviction and order of sentence dated 28th April, 1993 passed in G.R. No. 840 of 1989/Tr. No. 49 of 1993 by the Special Judge, Sitamarhi whereby the Presiding Officer has found the appellant guilty for the offence punishable under section 7 of the Essential Commodities Act and sentenced him to undergo R.I. for three months and inflicted a fine of Rs. 500/- and in default of payment of fine to further undergo R.I. for one month. 2. The prosecution story in short is that on 12th June, 1989 N.K. Chowbey the then Officer-in-Charge of Rahika Police Station made statement alleging therein that he received a confidential informant that the appellant had kept diesel for selling the same in the market of Bairgania, Majorganj and also to send the same to foreign country Nepal in blackmarket. This information was entered vide S.D. entry No. 280 dated 12.6.1989 and a raiding party was organized. The raiding party raided the house of the appellant but the appellant was absent at the time of raid. 45 liters of diesel kept in different jerkins and 13 liters of K. oil was recovered from the house of the appellant. Aforesaid articles were seized and seizure list was prepared. On the basis of self-statement the case was instituted. Thereafter the police took up the investigation and after investigation charge-sheet was submitted, cognizance was taken and substance of accusation was explained to the appellant. The appellant pleaded not guilty and trial proceeded. 3. The defence was of false implication. Further defence was that the appellant was well off person having 12 acres of cultivating land. He was having three borings, one thrasher and one pumping set and the appellant needs diesel for its operation. The seized diesel was stored for the purpose of cultivation. The seized diesel was purchased on permit issued by the block office from M/s Ajay Petroleum on 30th May, 1989, Bajrang Lal & Brothers on 3.6.1989 and Shree Ganesh Auto Service on 1.6.1989. 4. In order to prove its case the prosecution examined altogether 4 witnesses. The informant has also been examined. The witnesses examined are; PW 1 Ram Pavitar Singh Sub-Inspector, PW 2 Md. Moin Driver constable, PW 3 Ram Pukar Baitha the seizure list witness and PW 4 Nand Kishore Chouwbey the informant and Investigating Officer. 5. 4. In order to prove its case the prosecution examined altogether 4 witnesses. The informant has also been examined. The witnesses examined are; PW 1 Ram Pavitar Singh Sub-Inspector, PW 2 Md. Moin Driver constable, PW 3 Ram Pukar Baitha the seizure list witness and PW 4 Nand Kishore Chouwbey the informant and Investigating Officer. 5. PW 1 was a member of raiding party. According to him 45 liters of diesel and 13 liters of Kerosene Oil were recovered from the house of the appellant on the date of occurrence. The petitioner was allegedly selling K. Oil and diesel and used to send the same to Nepal. According to him the appellant was present at the time of occurrence, but he could not offer any explanation of possessing the same. 6. PW 2 is the driver who has carried the raiding party to the place of occurrence. 7. PW 3 is the witness of seizure list. He in his evidence has identified his signature on the seizure list but he has stated that he was forced by the Officer-in-charge to sign over the blank paper on account of that he signed it. PW 4 is the informant and he has supported the prosecution story. 8. PW 4 was asked about the case. About the supervision note in cross-examination PW 4 has stated that the Dy. S.P. has found that the appellant was the owner of three borings, one pumping set and the Dy. S.P. observed that the seized articles were stored by the appellant for his agricultural work and these were purchased vide different cash memos dated 3.5.89, 30.5.1989 and 1.6.1989. 9. It has been submitted by the learned counsel for the appellant that the seized articles were well within the permissible limit. A person is entitled to keep 400 liters of diesel and 37 liters of Kerosene Oil which a person can store for own consumption. Hence no offence has been committed at all. Further submission is that PW 1 has stated that at the time of occurrence the appellant was present in the house whereas different version has been given by the other witnesses. It means there was no raid at all. 10. I am of the view that the storage made by the appellant was well within the permissible limit and this fact has been observed by the Dy. S.P. in course of his supervision. It means there was no raid at all. 10. I am of the view that the storage made by the appellant was well within the permissible limit and this fact has been observed by the Dy. S.P. in course of his supervision. No offence has been committed at all by the appellant. It appears that the appellant has unnecessarily been harassed. Accordingly, the impugned judgment of conviction and sentence is set aside and this appeal is allowed. The appellant is discharged from the liabilities of his bail bonds.